Citation Nr: 0808383
Decision Date: 03/12/08 Archive Date: 03/20/08
DOCKET NO. 99-05 563 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1966 to
September 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts.
The Board notes that the veteran's original claim was
previously remanded to the RO via the Appeals Management
Center (AMC) for further development per a Board decision
dated July 2000.
FINDINGS OF FACT
1. The veteran has a current diagnosis of PTSD.
2. There is no evidence that the appellant served in combat,
and no objective evidence has been submitted to verify the
veteran's claimed in-service stressors.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated during active service.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The requirements of the Veterans Claims Assistance Act of
2000 (VCAA) have been met. There is no issue as to providing
an appropriate form or completeness of the application. VA
notified the veteran in November 2003 and March 2006 of the
information and evidence needed to substantiate and complete
a claim, to include notice of what part of that evidence is
to be provided by the claimant and notice of what part the VA
will attempt to obtain. VA has fulfilled its duty to assist
the claimant in obtaining identified and available evidence
needed to substantiate a claim, and as warranted by law,
affording VA examination. VA informed the claimant of the
need to submit all pertinent evidence in his possession, and
provided adequate notice of how disability ratings and
effective dates are assigned. While the appellant may not
have received full notice prior to the initial decision,
after notice was provided the claimant was afforded a
meaningful opportunity to participate in the adjudication of
the claims, and the claim was readjudicated in an August 2007
supplemental statement of the case. The claimant was
provided the opportunity to present pertinent evidence and
testimony. In sum, there is no evidence of any VA error in
notifying or assisting the appellant that reasonably affects
the fairness of this adjudication.
Analysis
The veteran contends that he has PTSD related to incidents
that occurred while on active duty in Vietnam.
To establish entitlement to service connection for PTSD
requires: (1) medical evidence diagnosing PTSD; (2) credible
supporting evidence that the claimed in-service stressor
actually occurred; and (3) medical evidence of a link between
current symptomatology and the claimed in-service stressor.
38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128
(1997).
A diagnosis of PTSD must be established in accordance with
38 C.F.R. § 4.125(a), which simply mandates that, for VA
purposes, all mental disorder diagnoses must conform to the
fourth edition of the American Psychiatric Association's
Diagnostic and Statistical Manual for Mental Disorders (DSM-
IV). 38 C.F.R. § 3.304(f). The United States Court of
Appeals for Veterans Claims (Court) has taken judicial notice
of the mental health profession's adoption of the DSM-IV as
well as its more liberalizing standards to establish a
diagnosis of PTSD. The Court acknowledged the change from an
objective "would evoke...in almost anyone" standard in
assessing whether a stressor is sufficient to trigger PTSD to
a subjective standard (e.g., whether a person's exposure to a
traumatic event and response involved intense fear,
helplessness, or horror). Thus, as noted by the Court, a
more susceptible person could have PTSD under the DSM-IV
criteria given his exposure to a traumatic event that would
not necessarily have the same effect on "almost everyone."
Cohen, 10 Vet. App. 128, 140-41 (1997).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1).
The ordinary meaning of the phrase "engaged in combat with
the enemy," as used in 38 U.S.C.A. § 1154(b), requires that
a veteran have participated in events constituting an actual
fight or encounter with a military foe or hostile unit or
instrumentality. The issue of whether any particular set of
circumstances constitutes engagement in combat with the enemy
for purposes of section 1154(b) must be resolved on a case-
by-case basis. See VAOPGCPREC 12-99; 65 Fed.Reg. 6527
(2000).
If the veteran did not serve in combat, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statements
as to the occurrence of the claimed stressor. Doran v.
Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's
testimony, by itself, cannot, as a matter of law, establish
the occurrence of a non-combat stressor. Dizoglio v. Brown,
9 Vet. App. 163, 166 (1996). Moreover, a medical opinion
diagnosing PTSD does not suffice to verify the occurrence of
the claimed in-service stressor. Cohen v. Brown, 10 Vet.
App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 396
(1996).
The instant case turns on whether the veteran has PTSD which
is related to a verified service stressor.
Service personnel records confirm service in Vietnam from
August 1967 to August 1968. The veteran served as a heavy
equipment repairman and a vehicle repairman. The veteran was
not awarded the Combat Infantryman's Badge, a Purple Heart,
or any other medal or award reflective of combat service.
The service medical records do not contain any complaints,
findings, or treatment of a psychiatric disorder, to include
PTSD. On his report of medical history dated August 1966,
the veteran noted a history of nervous trouble. Upon
examination of the same date, however, the veteran was
determined to have a normal psychiatric state, and was found
qualified for active duty. Separation examination and report
of medical history upon separation, both dated June 1969,
noted a normal psychiatric state with no complaints of any
nervous trouble.
A VA hospital admission report dated September 1973 noted
that the veteran was admitted for complaints of
suspiciousness, violent temper, inability to hold a job, and
drinking. The report noted that the symptoms appeared to be
long-standing, and that the veteran appeared to be moderately
to severely disturbed.
The veteran was admitted to a VA hospital again for inpatient
treatment from July to November 1974. The discharge report
dated November 1974 noted that there were unconfirmed reports
that the veteran "went berserk" at least three times during
service, from 1968-1970. The veteran reported that his
problems began in 1969, when he separated from his first
wife. Discharge diagnoses of status post schizophrenia,
paranoid type; status post schizophrenic acute episode,
schizophrenia, residual type, and habitual excessive ethanol
ingestion were provided.
VA treatment records dated 1979 to 1998 note treatment for
alcoholism, PTSD, and other psychiatric disorders. A 1979
psychiatric admission report noted admission due to explosive
behavior while under the influence of alcohol and a diagnosis
of alcohol dependence and latent schizophrenia were provided.
An October 1984 record noted an assessment of alcohol abuse
and schizophrenic behavior that was possibly alcohol induced.
A March 1992 VA hospitalization report indicated that veteran
was treated for alcohol abuse. A discharge diagnosis of
alcohol dependence was provided. An August 1995 treatment
report indicated a history of alcohol abuse and that the
veteran reported being verbally abusive to people around him.
A February 1997 treatment report indicated that the veteran
had a diagnosis of PTSD.
A Personality Assessment Inventory, dated July 1996,
performed in conjunction with requested vocational
rehabilitation services noted that the veteran reported
exposure to combat while in Vietnam in 1967-68. The report
stated that the combat experiences plagued the veteran's
adaptative functioning and served as significant barriers to
effective vocational and social functioning. It was noted
that alcohol dependence significantly impacted the client's
adaptive functioning. The examiner noted that the veteran
met the DSM-IV criteria for major depression, as well as
PTSD. The final diagnoses provided included: alcohol abuse,
in remission, PTSD, and major depression, recurrent, in
partial remission.
The veteran was afforded a VA examination in January 1999.
The veteran reported traumatic events including; being
assigned to guard duty with no ammunition, driving a truck as
part of a convoy where he was exposed to sniper fire, and
seeing bodies being unloaded at "graves registration" after
a mortar attack. Following an examination the diagnoses were
recurrent severe depression without psychotic features;
chronic, severe PTSD; and panic disorder with agoraphobia. A
Global Assessment of Functioning (GAF) score of 33 was also
provided.
The record contains a diagnosis of PTSD which is related to
the veteran's reported service stressors. See the July 1996
Personality Assessment, and the 1999 VA examination. Thus,
the determinative factor in the instant case is whether the
veteran has submitted evidence which corroborates his service
stressors.
The first stressor the veteran alleged occurred when he was
in transit in August 1976 from Saigon to Long Binh. The
veteran stated that he was assigned guard duty with an M14
rifle but that he was not given any ammunition to defend
himself with. This caused him extreme anxiety. The veteran
stated that his second stressor occurred when he was
relocated to Cam Rahn Bay which, while relatively safe, was
on red alert on three occasions while under attack.
The veteran also alleges he was reassigned to the 529th
Transportation Company for whom he drove convoys from Cam
Rahn Bay to Ban Me Thout, Na Trang, and Phan Rang. While on
convoys, the veteran claimed that he had to ride alone in his
truck and that while they were armed, his convoy was not
given any ammunition. He also alleged that while on the
convoys he was subject to sniper fire, road land mines, and
saw numerous dead bodies.
Finally, the veteran reports was that he was temporarily
reassigned to the 155th Helicopter Assault Company for two
months for field maintenance where he flew to Ban Me Thout
after it was hit by mortar fire. The veteran stated that he
witnessed dead bodies and destruction as a result of the
attack.
None of the aforementioned stressors are corroborated by the
evidence of record, including the veteran's service medical
and personnel records. The Board observes that despite
notification dated January 2002 and again in November 2003,
the veteran has not provided the specific information
necessary which would allow VA to assist him in verifying his
claimed stressors. In a statement dated January 2002, the
veteran asserted that he was in Na Trang, Phan Rang, and Ban
Me Thout between the months of October 1967 to January 1968,
but stated that he could not recall precise dates or names.
Further, while service personnel records indicate that the
veteran served as a heavy equipment and vehicle repairman
with the 575th Supply Company and the 423rd Rep. Pts. Company,
there is no evidence that the veteran ever served in the
529th Transportation Company. Additionally, there is no
evidence that the veteran ever had a job as a convoy truck
driver. Finally, the Joint Services Records Research Center
(JSRRC) reported in June 2007 that the veteran was never
assigned to the 155th Helicopter Assault Company.
The RO did not attempt to verify whether the veteran's
participation in Counteroffensives III, IV, and V was per se
evidence of combat. In retrospect, it is clear that any
veteran who served in Vietnam between July 1, 1966 and
November 1, 1968 served in Counteroffensives III, IV, and V,
regardless of whether they served in a plush Saigon office
job or in fierce combat defending Hue. See page 85
http://vbaw.vba.va.gov/bl/21/rating/stressor/army/armygeneral
info/ARMY%20AR600-8-22%20AWARDS%20MANUAL.pdf. In the instant
case, while he served in Vietnam, the veteran served in
noncombat jobs as a heavy equipment and vehicle repairman.
Hence the failure to undertake that development was harmless,
particularly in the light of other stressor development that
was undertaken, and the appellant's failure to provide
information that could help corroborate the claimed
stressors.
Finally, the Board acknowledges that the July 2000 remand
directed that the appellant be provided a VA examination in
which the examiner was asked to provide an opinion as to
whether the veteran had a diagnosis of PTSD based on only the
verified history detailed in the reports by the USASCRUR and
the RO. In view of the lack of a verified stressor further
VA examination would not be useful to VA in deciding the
veteran's claim.
In light of the fact that the probative evidence of record
does not include any evidence of a verified in-service
stressor which is related to the diagnosis of PTSD, the Board
finds that the preponderance of the evidence is against the
claim of entitlement to service connection for PTSD. As the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application in the
instant case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990). Consequently, the claim must be denied.
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs